ACLU and National Media Intervene in Mann v Steyn et al

I get the sense that the Washington libel community and U.S. national media have belatedly woken up to the potential threat of Mann v Steyn and that the tide is now starting to run strongly against Mann in the anti-SLAPP proceedings. The most visible evidence of this is an impressive Amici brief from the ACLU and an imposing list of 25 other media organizations (the Reporters Committee for Press Freedom, the American Society of News Editors, the Association of American Publishers, the Association of Alternative Newsmedia (The Village Voice et al), NBC Universal, Bloomberg News, the publishers of USA Today, Time, The Washington Post, The Chicago Tribune, The Los Angeles Times, The Detroit Free Press, The Seattle Times, The Arizona Republic and The Bergen County Record) filed on August 11, 2014.

In addition, Steyn’s own Amicus brief substantially upped the ante on a separate front. It repeatedly and directly accused Mann of submitting “fraudulent” information to the court and commented adversely on “the ease with which Mann lies about things that would not withstand ten minutes of scrutiny in a courtroom”.

The Brief by ACLU and 25 Others
On some points, the ACLU brief takes a pretty similar line to that previously taken by National Review and CEI, but it presents some interesting fresh nuances and authorities. I won’t attempt to precis the brief as it is well written and worth reading, though readers uninterested in the procedural details of anti-SLAPP litigation would do well to skip to section II of the brief (commencing on page 12).

They asserted that the “challenged publications bear all the traditional hallmarks of opinion” and that “permitting such a defamation claim to proceed will substantially chill speech that challenges scientific conclusions, as well as public policies based on them.”

They observe:

Mann essentially complains that the defendants accused him of manipulating data, including by molesting and torturing it, to serve a political agenda. … Because the statements are quintessential opinions about the validity of Mann’s scientific methods and conclusions, they are entitled to full constitutional protection.

The ACLU brief provides detailed commentary on the range of abusive commentary in scientific disputes that courts have found to be permissible, concluding that the commentary in this case was within permissible limits.

In subsection II(D) (page 20), the ACLU et al provide an interesting and, in my opinion, compelling argument against Mann’s claim that the defendants were obliged to accept the findings of the various government agencies – a topic that I’ve focused on in my previous commentary.

CA readers are aware that Mann’s claim to have been “exonerated” by Muir Russell, Oxburgh, NOAA and the UK Government are untrue (“fraudulent” is Steyn’s term), but ACLU’s argument is different: they say that “punishing defendants’ speech because Mann’s work had been backed by other scientists or governmental agencies is contrary to core First Amendment principles”.

They first counsel the court against getting embroiled in trying to resolve scientific questions, no matter how authoritative the apparent support for the scientific assertion – advice that any court would undoubtedly be willing to heed.

The ACLU et al also unambiguously said that any reliance given by the Superior Court to supposed vindications or exonerations by governmental agencies was an “error” and that such government agencies did not give Mann the right to “silence his critics in a defamation claim”:

Furthermore, to the extent the Superior Court credited Mann’s assertion that investigations by the EPA, the National Science Foundation, and Penn State, among other scientific and governmental bodies, “laid to rest” defendants’ questions regarding Mann’s research, Am. Compl. ¶ 24, this too was in error. See also July 19, 2013 Orders at 16 (suggesting that statements were actionable because “Plaintiff’s work has been investigated and substantiated on numerous occasions”). The fact that certain official panels backed Mann’s methodology – facts that were not only disclosed in the challenged publications but in fact formed the basis for them – cannot allow him to silence his critics in a defamation claim. Under the First Amendment, the government is not the final arbiter of truth with the power to foreclose further challenge to its policies.11

In footnote 11, the Amici unambiguously supported defendants’ right to disagree with the findings of government inquiries, describing the right to such disagreement as fundamental to the First Amendment. In doing so, they observed that the defendants had provided substantive criticism of the procedures of the investigative bodies:

11 Indeed, if the First Amendment and case law interpreting it stand for anything, it must be that disagreement with findings of government and quasi-government bodies are fully protected. Here, defendants criticized the investigative bodies as, variously, lacking independence, failing to interview a relevant witness and therefore being too limited in scope, and being overly reliant on evidence provided by Mann’s employers, who had “so much at stake.” See Am. Compl., Ex. A.

In the next footnote, they pointed out that Mann’s pleadings had omitted the relevant information that the commentaries had disclosed that the government agencies had sided with Mann (while disagreeing with the agencies) and had provided hyperlinks to the criticized agency reports thereby permitting readers to form their own conclusions:

In this regard, Mann’s description of the commentaries omits that they disclose that governmental agencies had in fact sided with him while also criticizing those official findings. That background is described in their text – and, in some instances, through hyperlinked sources – thereby allowing readers to formulate their own judgments about the opinions expressed. See, e. g., Boley, supra, 950 F. Supp. 2d at 262 (hyperlinking to an earlier article provided “the necessary context for the allegedly defamatory remark”); Abbas, supra, 975 F. Supp. 2d at 18 & n. 7 (finding hyperlinks were sufficient to disclose background for fair comment privilege); Agora, Inc. v. Axxess, Inc., 90 F. Supp. 2d 697, 704-05 (D. Md. 2000) (dismissing defamation claim based on facts disclosed through hyperlinks), aff’d, 11 F. App’x 99 (4th Cir. 2001); Adelson v. Harris, 973 F. Supp. 2d 467, 483 (S. D. N. Y. 2013) (relying on a hyperlink to a report about an official proceeding in dismissing a defamation claim).

The ACLU brief closes:

At bottom, a participant in the “rough-and-tumble” of public debate should not be able to use a lawsuit like this to silence his critics, regardless of whether one agrees with Mann or defendants. See Guilford Transp. Indus., supra, 760 A. 2d at 595-96 (endorsing Voltaire’s philosophy, “‘I disapprove of what you say, but I will defend to the death your right to say it,'” which “anticipatorily articulated the spirit of our First Amendment”). The “law certainly does not insist” that a speaker “look kindly on [his] subjects,” nor that a plaintiff “simply by filing suit and crying ‘character assassination!,'” may “silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests.” Underwager v. Salter, 22 F. 3d 730, 736 (7th Cir. 1994). Rather, as the Seventh Circuit eloquently put it, expressing a sentiment echoed by other courts: “Scientific controversies must be settled by the methods of science rather than by the methods of litigation. More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.” Id. (citation omitted).13

Steyn’s Brief
Steyn’s brief (noted up together with the other briefs in Steyn’s blogpost here is far more direct in its allegations against Mann than previous pleadings, repeatedly describing claims and assertions in Mann’s previous pleadings as “fraudulent”.

Steyn rubbed salt into Mann’s false claim to have been a Nobel Prize winner and the imaginary tort of defaming a Nobel Prize winner, describing Mann’s priod claim as a “fraudulent misrepresentation”:

Mann’s fraudulent misrepresentation of his credentials and academic standing later earned him a rebuke from Geir Lundestad, director of the Nobel Institute in Oslo. One can well understand why the exposure of Mann’s fraudulent claim should cause him embarrassment but it should surely not justify resetting the procedural clock back to the beginning on this case, which is what in effect happened.

Steyn repeatedly used the term “fraudulent”, also using phrases like “the audacity of the falsehoods in Mann’s court pleadings is breathtaking” and that it was “deeply disturbing that a plaintiff should make such fraudulent claims in his legal pleadings”:

In his later court filings, Mann has made equally preposterous and objectively false claims. For example, Mann has claimed that he has been “exonerated” by such bodies as the University of East Anglia, the U.S. National Oceanic and Atmospheric Agency, and even by the government of the United Kingdom, none of which have investigated Dr Mann at all, never mind “exonerated” him.

The audacity of the falsehoods in Mann’s court pleadings is breathtaking. For example, on page 19 of his brief below dated January 18, 2013, he cites the international panel chaired by the eminent scientist Lord Oxburgh, FRS as one of the bodies that “exonerated” him, whereas on page 235 of Mann’s own book, The Hockey Stick and the Climate Wars , he states explicitly that “our own work did not fall within the remit of the committee, and the hockey stick was not mentioned in the report.” It is deeply disturbing that a plaintiff should make such fraudulent claims in his legal pleadings.

Steyn added:

It is clear from the ease with which Mann lies about things that would not withstand ten minutes of scrutiny in a courtroom that he has no intention of proceeding to trial.

Conclusion
All in all, it seems to me that Mann is facing far more formidable opposition than in any of the previous hearings, both from the ACLU et al intervention and from increasingly formidable defendant briefs. Mann presumably chose DC as a forum because he thought that it would favor him, but appears to have overlooked the possibility of intervention by the ACLU and national media. I can’t imagine that the DC Appeals Court will want the quixotic decision by J Combs-Greene (mostly adopted by J Weisberg) to represent the public face of DC libel law and I anticipate a different decision.

While I agree with Steve McIntyre that the likelihood of smoking guns in the discovery process are unlikely to be appear, (although given Mann’s demeanor who really knows?), discovery will still be useful.

There’s an Easter egg in discovery that I have not seen mentioned in these discussions.

The Climategate III emails exist in circulation now, among maybe a dozen of the chosen few, who’ve been given the secret decoder ring.

Whatever Mann produces in response to discovery requests can be checked for compliance against the Climategate III emails. If an email subject to discovery exists in the Climategate III archives but is not produced by Mann, it is evidence of destruction of evidence. Not proof, but evidence, and this is a civil case. And this evidence is easily delivered to Steyn’s attorneys.

For example, Steyn can request the tranche of emails delivered to the Penn State investigators. This can then be cross-checked for compliance and so on.

Also, Mann DOES NOT KNOW, what’s in the Climategate III emails. I doubt anyone on that side of the fence has access to the archive.

By posting this comment, which we all know will get back to Mann and his team, an additional hurdle is now handed Mann. He will now have to second guess what he decides to hide or has already destroyed.

@Charles the moderator – I would hope that Mann assumes ALL emails are in CGIII, and thus is forthcoming with any discovery. But you also correctly pointed out his ego, so it is hard to say what he will do.

“Scientific controversies must be settled by the methods of science rather than by the methods of litigation. More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.”
Hear, hear!

The issue currently before the DC Court of Appeals is whether the denial of the motion to dismiss under the SLAPP provisions is immediately appealable (vs waiting until after the trial). The CEI brief does a reasonable job of explaining why it is immediately appealable. Based on the time provided in the order dated june 26, 2014, the court hearing on that issue is scheduled for the month of Nov 2014, So a ruling on that issue would likely occur in Dec or Jan.
It would appear, that if the denial is ruled to be immediately appealable, then the Appeal of the denial of the motion to dismiss would be another court hearing in the spring of 2015.
All the briefs did address why the denial of the motion should be reversed, though only the CEI brief seemed to address whether the denial is immediately appealable.
Steve: the first section of the ACLU brief was on immediate appealability.

I can’t imagine that the DC Appeals Court will want the quixotic decision by J Combs-Greene (mostly adopted by J Weisberg) to represent the public face of DC libel law and I anticipate a different decision.

Why did that make me laugh so much? Thanks for such an encouraging, factual summary.

Quoting from page 16 of the ACLU brief:
“See, e.g., Am. Compl. ¶ 23 (“‘[m]uch of the current debate focuses on the viability of the statistical procedures he employed, the statistics used to confirm the accuracy of the results, and the degree to which one specific set of data impacts the statistical results,’” all of which are “‘appropriate for scientific debate.’”) (quoting Aug. 2011 National Science Foundation report)”

I have previously commented on this statement from the NSF memorandam. (one of the 7 or 8 “investigations/exonerations of Mann)
As I read this statement by the NSF as meaning that the NSF acknowledged that Mann used selectively chose which data sets to include and which to omit from the the temp reconstructions and an acknowledgement that the statistical weighting factored into the results of the temperature reconstruction.

Steve has previously commented on several of the prior climategate investigations of Mann and the others in the climate science community, though I dont recall if he has addressed the NSF investigation. Steve any comments regarding the NSF report.

Mann has a facebook page, a twitter feed, is part of RealClimate, has a book aimed at the public, has given hundreds of interviews and been featured in Scientific American. I believe this makes him a public figure for purposes of defamation law. The court has ignored this dimension of the issue.
Steve: I disagree. Mann conceded that he was a public figure.

The error the superior court (the trial court) made was that since Mann is a public figure (which he has acknowledged in the court filings), the burden of proving malice shifts to the plaintiff. In a normal motion to dismiss, the allegations pleadings are generally treated as true (and/or considered in the best light to the plaintiff). However, in a slapp action, the burden of proving malice shifts to the plaintiff who is the public figure. The mistake was then taking Mann’s pleading as factual and not requiring a showing of proof of malice.

Posted Aug 13, 2014 at 3:21 PM | Permalink | Reply
Mann has a facebook page, a twitter feed, is part of RealClimate, has a book aimed at the public, has given hundreds of interviews and been featured in Scientific American. I believe this makes him a public figure for purposes of defamation law. The court has ignored this dimension of the issue.

Steve: I disagree. Mann conceded that he was a public figure.

Steve & craig: correct me if i am wrong – I agree that mann and the court recognized that mann is a public figure. I think the mistake the court made is once is becomes a public figure, the burden of proof of malice shifts to the plaintiff. In the normal motion to dismiss, the pleadings are viewed in the most favorable light to the plaintiff, where as under the slapp provisions, the pleadings/facts are still evaluated in the best light to the plaintiff, with the exception that the burden of proving malice shifts to the plaintiff at the motion to dismiss stage.

I think the issue for Mann is that he has confused “Scientific controversy” with “public controversy” – he believes there is no “scientific controversy” surrounding his work (which is arguable IMO).
However, as far as I can tell, 1st ammendment rights are based on “public controversy”, of which there is certainly plenty regarding both AGW and Mann’s work. Since “the science” does not define “the” policy to deal with it, only the problem itself, “public controversy” is inevitable, regardless of the status of any “scientific controversy”.

It’s also encouraging that both John Cook and Stephan Lewandowsky are starting to draw attention for their absurdly wrong-headed publications. Science does self-correct, although it sometimes seem to do so on a geological time-scale.

“When men are most sure and arrogant they are commonly most mistaken, giving views to passion without that proper deliberation which alone can secure them from the grossest absurdities.”
— David Hume.

The fact that certain official panels backed Mann’s methodology – facts that were not only disclosed in the challenged publications but in fact formed the basis for them – cannot allow him to silence his critics in a defamation claim. Under the First Amendment, the government is not the final arbiter of truth with the power to foreclose further challenge to its policies. Indeed, this fundamental principle was the basis for repudiating the Sedition Act of 1798, which had criminalized speech criticizing the government.

Mark Steyn dearly wishes to confront Michael Mann in a court of law and to force Mann to defend his climate science work in a public forum.

Steyn’s ultimate objective in pursuing this confrontation is to damage Mann’s public credibility as a climate scientist; and more importantly, to damage the public credibility of climate science itself.

Joseph W., I have a question for you in your capacity as a lawyer: Concerning the process of how and where the various legal maneuverings are pursued by each side, what series of events must occur to guarantee that Steyn eventually confronts Mann in a court of law?

Steve: I’ve repeatedly urged readers not to expect very much courts. Nor is it nearly as evident to me as some readers that Steyn would pursue his counterclaim if Mann’s claim is dismissed, other than for costs. Steyn has consistently argued that science and policy questions should be settled in the marketplace of ideas and not in the courtroom.

Some of us never expected much and this post came a pleasant surprise. I’m glad to hear that Steyn may have a way of recovering costs. That’s going to cause a bonanza of cheap items in his online store, surely. :)

Beta – it’s easier to list the things that have a good chance of stopping that confrontation.

#1, if NR/CEI prevail on their appeal before trial, Steyn can (and should) ask the judge to reconsider his denial of the earlier dismissal motions…then Mann’s case vanishes, leaving only Steyn’s counterclaim.

#2, after discovery is done, both sides can (and probably will) ask for summary judgment…trying to show the judge there is no material issue of fact to be decided at a trial. For example, Steyn could submit an affidavit saying he believed what he wrote, and why he believed it; and if Mann can’t come up with evidence that tends to show the contrary, the judge should grant judgment to Steyn. Something similar can happen on the counterclaim. If a defendant wins on summary judgment then there is no trial; if a plaintiff wins then there’s a trial on damages only.

#3, Also, at any time, the parties can ask to dismiss their own cases…which usually happens after a settlement. I don’t expect Steyn to do that, as a settlement would have the same bad effects as a Mann victory.

If none of those things happens…and everybody lives long enough…then they face each other in court.

I agree 100% with what Steve said to you, and what I myself have said often, in different ways. Trial court is not a place to seek vindication or advance the debate; and if you go in there expecting something like that, it will break your heart.

Joseph W. and Steve, I have long viewed Michael Mann as a canny scientist-businessman who tailors his climate science products to fit the marketplace needs of the Global Warming Industrial Complex.

This has been a very lucrative enterprise for Mann for a long time, with the Hockey Stick as the premier offering in the Michael Mann climate science product line.

From Mann’s perspective as a scientist-businessman who needs to keep his name and his climate science products continuously in the public eye, all publicity is good publicity.

Because his financial backers in the Global Warming Industrial Complex pay all the bills, I don’t think Michael Mann personally cares all that much whether he is, or is not, successful in his lawsuit against Steyn.

Win or lose, Mann himself gets a lot of press coverage out of this lawsuit, with Steyn footing part of the bill for the publicity Mann as an AGW huckster gets out of it.

What more could a market savvy scientist-businessman ask for when a consumer oriented critic of your climate science product line, one Mark Steyn, is being forced to cover a good portion of the costs for all this publicity?

While it may be true that a court room confrontation between Steyn and Mann wouldn’t be in the best interests of most parties to the scientific debate over global warming, watching the spectacle of it all would be well worth the price of admission just for its considerable entertainment value.

I agree with Steve. Steyn has been saying two different things. He wishes to have his day in court, but it is also ridiculous that this case was not dismissed. Steyn is not primarily concerned about taking Mann to court, but in preserving free speech. He was instrumental in getting the Canadian Human Rights Commissions thrown out when he and his newspaper were sued there for offending Muslims.

Steve: I think that readers have to be careful about projecting their own views onto Steyn, who is not easily categorized. My take is that, at a certain point, Steyn – as a veteran of relatively expeditious Canadian litigation – figured that it would be just as easy to take the matter to court as to litigate it procedurally. I don’t think that this was necessarily because he had any specific desire to examine Mann in court, but that in motions, judges have to accept allegations as true, whereas in court they can decide on the facts. For example, Mann wasn’t exonerated by the UK Government, but at a motion stage, a judge confronted by Mann’s claim that he was so exonerated may have to accept that false (in Steyn’s words “fraudulent”) claim as true. My interpretation is that Steyn wanted to move the proceedings to a forum where Mann’s false claims could be weighed. This is entirely different from the WUWT reader’s desire to get Mann into court. As I’ve said before, I think that Steyn would prefer to go about his business, but, having said that, if he goes to court against Mann, it will obviously be full throttle.

I agree. Steyn broke from NR when the lawyers were discussing a long litigation.
However, his experience with Canadian courts was not expeditious. He was guilty of the ‘crime’, and simply exposed the entire court to public ridicule, getting the law overturned. The defamation trial against Ezra Levant that arose from the publication in 2006 began March of this year.

One of the major points of contention seems to be whether a statement such as “Mann lied about…” can be construed as a statement of fact. (It is only actionable by litigation if it is a statement of fact rather than opinion, if I understand correctly). The ACLU brief IMO does a sickening little dance around this question, citing a previous case for support:

“The plaintiff sued the scientist and the magazine for defamation, but the court found that the challenged statement – plaintiff ‘lies’ – could not be reasonably understood in that context to suggest that the plaintiff is ‘a person lacking honesty and integrity.’” [quotation marks fixed – the ACLU needs an editor]

The fact that the judge in Mann v. Steyn did not buy in to this bizarre pretzel logic seems to have gotten a lot of folks excited. It is not clear to me why being able to publicly label someone a liar when you have no evidence is a necessary part of civil society.

Matt,
Is it possible that facing a requirement to produce evidence if you labeled someone a liar would clog the courts with labelers? Would this then expand to being required to produce evidence for anything you said? Suppose you said that “this guy is a wonderful investment manager.” and you said it of Bernie Madoff?

“At bottom, a participant in the “rough-and-tumble” of public debate should not be able to use a lawsuit like this to silence his critics, regardless of whether one agrees with Mann or defendants. See Guilford Transp. Indus., supra, 760 A. 2d at 595-96 (endorsing Voltaire’s philosophy, “‘I disapprove of what you say, but I will defend to the death your right to say it,’” which “anticipatorily articulated the spirit of our First Amendment”). The “law certainly does not insist” that a speaker “look kindly on [his] subjects,” nor that a plaintiff “simply by filing suit and crying ‘character assassination!,’” may “silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests.” Underwager v. Salter, 22 F. 3d 730, 736 (7th Cir. 1994). Rather, as the Seventh Circuit eloquently put it, expressing a sentiment echoed by other courts: “Scientific controversies must be settled by the methods of science rather than by the methods of litigation. More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path toward superior understanding of the world around us.” Id. (citation omitted).”

Looking at the ACLU comment that SteveM posted in the introduction to this thread, and excerpted in part by other posters, faces head on the spirit of this case which was (and is) most worrisome to me, i.e. the potential of having an activist judge with little or no credentials in understanding the status of the AGW science and debates might well considered literally the oft time heard comment in the media that the science is settled. The judge might even have heard reputable media organizations talking about no longer giving space to skeptical views and arguments since in their mind the case is closed.

If the judge were to see the implementation of attempted mitigation of AGW by the government, like for instance EPA regulations, as being directly hindered by what she/he might see and judge as deliberate lies influencing voters and policy makers about the matter and also viewing the need for those regulations as saving humankind, she/he might be willing to set a precedent for protecting the scientist and his views from what otherwise would be considered protected speech involving a very public figure.

She/he might even use the rationale of Chief Justice John Roberts, who in defending the term tax instead of the term penalty – which was used in passing the act, to make the Affordable Care act constitutional: “In pressing its taxing power argument, the Government asks the court to view the mandate as imposing a tax on those who do not buy the product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” While this case does not directly involve a statute, the Roberts’ rationale might be used.

The alternative to the view of the activist argument for the judge proceeding this far in this case would be very unkind to the judge(s). The reason I say I continue to be concerned with this case is that while the ACLU can be influential in these matters, it is not always on the winning side.

There seems to be significant risk for the courts in siding with Mann also. Judges decisions often appear completely random to me though. I’ve read (and even witnessed) cases where the decisions simply defy any form of logic and explanations from the court are even self-contradictory.

I’ve created a sophisticated R code for determining the future outcome of the case. It has accuracy equal to any Mannian paleo reconstruction so it should be taken seriously by the team.

The District of Columbia has a significant interest in this Court’s interpretation of the free speech rights-implementing protections of the Anti-SLAPP Act of 2010, D.C. Code § 16-5501 et seq. (the “Act”). . . .the Council in the Act sought to “ensure . . . a defendant is not subject to the expensive and time consuming discovery that is often used in a SLAPP as a means to prevent or punish,” so that “District residents are not intimidated or prevented, because of abusive lawsuits, from engaging in political or public policy debates.” . . .
appropriate to implement the Council’s clear intent in the Act to provide qualified immunity protections for those exercising their constitutionally protected rights to speak out on a topic of public interest.” . . .
much-needed guidance to lower courts and litigants in the District of Columbia to confirm the nature of the protections provided by the Act.

Nick, back at the beginning of the case, the defendants could have tried to challenge the jurisdiction or the venue. (They would probably have failed, since CEI is a defendant and is headquartered in D.C., and generally you can bring a case in any jurisdiction where one of the defendants is a resident. That may be part of the reason they made CEI a defendant in the first place…plaintiffs often do select their defendants to get them into the courts they prefer.)

They could also have removed to the nearest federal court and maybe they should’ve. But they didn’t.

So to answer your question, in this time and place, it’s not presented as a legal argument at all…just a little swipe at the other side.

At the other side. When you accuse someone of “venue shopping” you’re saying, “He brought his case in this court for a bad purpose.” If there were real legal grounds for moving the case somewhere else, it was up to the defendants to ask the judge for that in a motion…which they did not do.

(The exception is if the court didn’t have jurisdiction over the subject matter. Then the judge would’ve had the duty to dismiss it on his own. But that is not the case here.)

But the basic New York Times v. Sullivan standard (as fleshed out by derivative cases) applies everywhere…and D.C. is a likelier place for Mann to get a favorable jury. From the looks of things, it was apparently a good place for Mann to get favorable trial judges as well. It was a smart move to file there.

Steve says: “I think that many readers have unrealistic expectations of what can be accomplished in discovery.”

I dunno. When I was sued, my lawyers had me about dump my whole AOL “file cabinent” to CDROM and turn it over the the plaintiff. And my wife’s.

I’m thinking that since the original focus of the complaint was the comparison of Mann to Jerry Sandusky and the failures of both Penn State investigations into accusations against these stars; the defendents may reasonably ask for any copies of documents in Mann’s possession, or to which Mann has access thru Penn State, relating to the thoroughness of that investigation.

“I get the sense that the Washington libel community and U.S. national media have belatedly woken up to the potential threat of Mann v Steyn and that the tide is now starting to run strongly against Mann in the anti-SLAPP proceedings.”

In fact, the ACLU also submitted an amicus brief in November 2013, as did some of the others. The more significant brief is from the DC AG, which supports the issue of immediate appeallability, but carefully caveats:“The District takes no position as to the merits of the underlying tort claims in this case, or as to the disposition of the underlying motions.”

Steve; wasnt aware of the earlier brief, but your characterization of the various scopes is incorrect. There are very large differences between the two. The new brief joins ACLU with 25 other parties including most many major news media – Washington Post, Time. The New York Times is conspicuously absent. In addition, the earlier brief was limited to appealability, whereas the new brief has important arguments on the issues.

BillW
“Where do you side on this issue, Nick? With the ACLU or with Mann?”

The ACLU brief primarily addresses immediate appeal. I have no opinion there, but expect that they will prevail.

They also defend the right to criticise Mann’s science. So do I. But if the court rules that folks should do so without accusing Mann of being a fraud and the Sandusky of climate science, then I can live with that.

Steve: Nick, for a Canadian, I am surprised at the apparent scope of permissible rhetoric under American libel law and at the degree to which it appears to permit defamation of public figures. As the subject of such defamation – notably by Mann himself – I don’t like it very much. But it is hard to contemplate a suit that fits more squarely into anti-SLAPP criteria since Mann has publicly said that he wanted to silence his critics and it does not appear that he suffered any actual damages from the blog posts. As I’ve written before, I think that Mann was unwise to include in his pleadings claims which Steyn calls “fraudulent” about winning a Nobel prize and about having been exonerated by the University of East Anglia, NOAA and the UK Government, particularly in a case where he claims to have been damaged by use of the word “fraudulent”. But, in the past, Mann has made some bizarre lies, so it’s not easy understanding his rationale for anything.

“But it is hard to contemplate a suit that fits more squarely into anti-SLAPP criteria…”

I would nominate Mann v. Ball as a much clearer example, except the case is in Canada and anti-SLAPP does not apply. Ball was just stating a rather silly opinion, prefaced with “Mann should be…” I think the Ball case would be summarily dismissed under anti-SLAPP because there can be no confusion about whether the statement by Ball was presented as fact.

Nick’s more limited point is (as often) interesting. Perhaps our host had missed the ACLU’s amicus brief in November. This kind of lacuna in our knowledge, which happens to us all, interests me as far as encouragement is concerned. Steve sounded encouraged. Others like Ken and Jeff aren’t so sure. I remain so. Because statement of the truth in itself encourages. Even taking on board Pouncer’s principled objection to one aspect of the ACLU’s argument. Most of all this is to say thank you to Mark Steyn himself. Tonic doesn’t remotely do justice.

“The new brief joins ACLU with 25 other parties including most many major news media – Washington Post, Time.”

The media, including WP and Time (but not NYT) also submitted a brief in Nov 2013.
Steve: thanks for drawing this to my attention. It’s hard to keep up with all the paper :) I’ll modify the language in my preamble. Even though these parties were already engaged, their new brief goes far beyond appealability and engages important substantive issues. In particular, I was impressed by their argument as to whether the defendants were obligated to accept the “exonerations” by the government agencies as a fact. The ACLU et al brief connected this issue to the First Amendment right to disbelieve government agencies and, in my opinion, eviscerated Mann’s already weak argument on this issue (quite aside from the factual issue of whether the University of East Anglia, NOAA and the UK GOvernment had actually “exonerated” Mann himself).

“It’s hard to keep up with all the paper”
I found that too. I made a list of links, in more or less chronological order. It needs updating. I see that the DC AG also made a submission to the previous appeal.

I think that Mann and his enablers might get their comeuppance and his stranglehold on climate science discourse might thankfully come to an end. How strange that this might come about by the efforts and resolve of a witty music critic.

Considering that the NY Times was at the forefront of modern US defamation law by helping to establish the “actual malice” standard, I consider it disgraceful that they seem to be sitting this one out. Perhaps someone there will suddenly recall their past legal glory and decide to weigh in at last:

After winning the Sullivan case, those at the Times may have been horrified when the law of unintended consequences bit them. If a plaintiff had to prove actual malice, then logically the plaintiff had to be allowed in subsequent cases to get access to the journalists’ notes, correspondence and drafts in order to find evidence re: said malice (i.e. knowledge of falsity). Having people look through their files may not have been considered such a great victory in the end.

The the ACLU et al brief is a welcomed contribution, since the court is more likely to consider the arguments of organizations with no direct interest in the case beyond protection of First Amendment rights.

But even if the appeals court were to finally reverse the lower court ruling, hear the appeal, and throw the case out based on the DC anti-SLAPP law, we should not lose sight of the legal reality here: the suit has already cost the defendants a huge amount of money and time, and will continue to for a long time to come. The DC lower court judges have effectively defeated the protections the anti-SLAPP law was supposed to provide. Even if the case is ultimately defeated at the DC appeals level, or on further appeal to a Federal Court, there is nothing which will prevent numbskull judges from making similar foolish rulings in future cases. IMO, there is no way for this or any other anti-SLAPP law to actually prevent SLAPP cases unless the law explicitly provides for counter-damages and recovery of legal cost from the plaintiff if a case is thrown out as a SLAPP. As I see it, Mann has already won: he has effectively punished Steyn et al, and more importantly, given warning to anyone in the media that they face similar legal punishment should they criticize climate scientists who choose to become public policy advocates. It is a sorry day for the First Amendment.

Steve: I think that you’re over-reacting. As I understand U.S. libel law, there is no First Amendment right to defame someone else; the First Amendment deals with the government. Nor do I think that public discourse on climate would suffer if Mann, Steyn, Simberg and others were more moderate in their public rhetoric. There is a First Amendment issue in this case but it is a little different than people think: it’s that Steyn and others have the right to disbelieve the government agencies that supposedly “exonerated” Mann. On Mann’s argument, once a government agency “exonerated” him, his innocence became a fact. The ACLU brief discusses this aspect of the case very effectively.

SteveF: You may be right but in this instance Steyn appears to want to make Mann pay for his “sins”. In doing so, he may do exactly what you believe the law should do if he wins the appeal. Lots of ifs and may bes but someone has to start the ball rolling.

As I understand U.S. libel law, there is no First Amendment right to defame someone else; the First Amendment deals with the government.

But the government includes the legislatures that define libel and the courts that enforce that standard. Sullivan and the later cases define the minimum standard beyond which the state (and D.C.) courts cannot enforce their defamation laws, and that standard is rooted in the First Amendment. That is why the “public figure/actual malice” standards apply even if neither party is a government official or is citing government officials in its own favor.

In that sense there is a right to “defame” (at least for certain definitions of that word) and that really is an issue in this case. Though the issue you mention is important as well, for reasons you well understand.

Nor do I think that public discourse on climate would suffer if Mann, Steyn, Simberg and others were more moderate in their public rhetoric.

What would be the political effect if one side allowed itself the full range of human expression, while the other side limited itself to genteel politeness of the kind you practice yourself? Public debate ends in political action after all…and that implies getting a full range of human personalities to act.

The ACLU brief includes the following language which in my view speaks to the issue that SteveF raises here. The statements point to the obvious problem here of litigation costs inhibiting free speech on public issues, but as SteveF points out the judge(s) original actions, or inaction, have already imposed that problem on the defendants. It is kind of like where theory and practical matters do not meet. The judges making the original decisions had to be aware of these seemingly contradictory issues also – which made me think they had other motivations for their actions.

“When drafting the anti-SLAPP legislation, D.C. lawmakers emphasized that the statute
was designed to extend immunity to those engaged in protected activities. Committee Report
at 4. The statute conveys a substantive right “to expeditiously and economically dispense of
litigation.” Id. The purpose of the statute, then, is to protect certain defendants from having to
expend the time and money in defending meritless claims, because such claims chill speech on
matters of public interest. Once defendants are forced to litigate, they have lost their immunity
from trial, which is unreviewable on appeal…

..Regarding the third criterion, the court found that anti-SLAPP statutes “provide defendants the right not to bear the costs of fighting a meritless defamation claim” and are therefore unreviewable on appeal from final judgment.”

>Nor do I think that public discourse on climate would suffer if Mann, Steyn, Simberg and others were more moderate in their public rhetoric.

I disagree on this point. If Mann had a victory in hand, then he could wield that as a weapon to prevent criticisms from appearing in other publications. This is the essence of Steyn’s argument.

Steve: Your second point doesn’t follow from the first. While I agree that Mann would use any success as a sword, this is by no means the only line of argument advanced by Steyn and others nor necessarily the “essence” of their argument, which is multilayered.

Not the only line of argument, but I think it is a primary one. You say that public discourse would not suffer if a more moderate tone is taken. Many people when the Canadian Human Rights Commissions were passed into law probably took a similar line that it’s no big deal if some horrible actions and speech were forbidden. Indeed, many people who hear Mann was compared to a child molester would not have a problem with Mann’s victory on damages. Steyn in his commentary now appears to deliberately toning up his rhetoric just because he doesn’t like the idea of moderating his tone.

Mr. McIntyre, your inline comment states: “As I understand U.S. libel law, there is no First Amendment right to defame someone else; the First Amendment deals with the government.” (emphasis added). Your comment could be read to imply that without “government” action First Amendment issues are not implicated. However, under New York Times v. Sullivan, the fact that remedies for defamation are brought through and enforced by courts counts as “government” action, and therefore implicates First Amendment concerns and protections. Justice Black’s concurrence discusses that issue at length.

…Under section 16-5504(a) of the Act, the court “may” allow the moving party to recover costs and
attorneys’ fees when it prevails in its anti-SLAPP motion…

…If the defendant prevails on its special motion under the Act, plaintiffs may choose to forego or dismiss any
appeal in order to avoid the imposition of attorneys’ fees and costs.61 If the motion is denied, SLAPP
defendants may seek an interlocutory appeal under the collateral order doctrine that permits appeals where, as here, the statutory protection would be lost if interlocutory review were not available.”

The link below references section 16-5504(a) where, please note, it is Mann this time on the other side of the Anti-Slapp act.

“Section 4 of the Anti-SLAPP Act provides that the Court may award reasonable attorneys’ fees and costs to a moving party who prevails, in whole or in part, on a motion to dismiss brought pursuant to the Anti-SLAPP Act. D.C. Code § 16-5504(a). The award of attorneys’ fees and costs is especially warranted here because Steyn’s counterclaims are plainly without merit and fly in the face of this Court’s previous rulings on his motions to dismiss. Steyn’s counterclaims amount to nothing more than a complaint against Mann for filing this lawsuit and unsubstantiated allegations that the purpose of Mann’s lawsuit was to stifle Steyn’s and other freedom of expression.”

It would appear that prevailing in an Anti-Slapp ruling does not guarantee compensation of legal fees from the plaintiff, but that it could happen.

Steve McIntyre,
I must respectfully disagree; I do not think I am over reacting at all. I find the lower court refusal to reject the case under the DC anti-SLAPP law almost unbelievable. I am really troubled by this case, because it trounces on both the DC anti-SLAPP law and every aspect of the “settled law” of defamation of public figures. Like Kenneth, I can see no explanation for the lower court rulings on this case short of political allegiance to the left or utter stupidity and incompetence.

Expand the “political allegiance” to just politics, and you have the reason. The settled law says it should never have gotten this far, but politically Mann chose well.

His only hope is to bleed the opposition. Like it or not, stating a derogatory opinion about someone else is protected by the first amendment. Outright lying however is not. Mann has to prove that not only did they all lie about him (which no one in their right mind can believe), but they also KNEW it was a lie.

A comparison is not a lie. it is not even a statement of fact. It is an opinion.

It is fairly well accepted in legal circles that judge Green-Combs, while clearly appointed by and by her own actions a rather extreme liberal, was during her time in the judiciary also show to be legally inept to the point of gross incompetence (rulings overturned, etc). That is in part why she ‘retired’ from the bench after making this clearly faulty ruling, which even the DC government that passed the faulty Slapp law (vague on immediate appealability) disagreed with in their previous amicus filing, as pointed out above. Once Mann conceded he was a public figure, it should have been game over.

I beg to differ steve.Oone has the right to libel and slander, its just that after one does so, one may be sued for damages, thats all.
There exist no prior restraints against libel and slander…we say our piece, and then, perhaps, pay the price.

Clearly, defamation law taken to an extreme is a first amendment issue. It is hypothetically possible to have a situation where a government creates financial incentive for a well funded person to act as a complete charlatan for personal gain. We see numerous examples of this in politics.

Scientist are people so it is possible that a scientist could be as much a politician and charlatan as any other government funded person. In addition, their funding for legal battles today often comes through obscure non-profit paths which are basically government funded institutions rather than fighting with personal means such that filing and defending has zero physical cost to them. Calling this hypothetical individual (not related to our present case in any way) out for what they are, has an extraordinary potential cost associated with it.

In addition to the above the government which provides the funding has by definition a vested interest in the outcome. This applies to all forms of the hypothetical situation given here because the premise is that government is funding it, and the funding has caused a bias in the persons behavior. The government will (in general, not universally) want to defend what it considers to be in the governments interest.

In our present, non-hypothetical yet similar situation, various aspects of government funded, university community science across the globe, has called for silencing, reeducation and even death for critics of the climate science industry. While our host may not appreciate the tone of the discourse, liking or disliking the approach someone took in this situation is exactly the purpose of the first amendment in the US. It protects speech you don’t like, not speech you do. Many of us agree about the quality of Mann’s general scientific product. Many of us even question whether the poor product is created with intent. The most vociferous critique in this case should probably be protected speech and likely would hold up as such in an unbiased court as the worst opinions can be reasonably held of Mann, even if they are on the whole incorrect. However, courts are government entities and hardly qualify as unbiased observers.

There is a common view of government as a benevolent organization from the left in particular which gives shoulder shrugs to rulings that represent legal changes like this. To myself, it represents continuing creep of government power. Even if you think that the discourse was too radical, and even if you think it is somehow beneficial to limit it in this case, having a government with the power to limit it with all of the potential bias and abuses is a mistake with wide-ranging consequences. Yes there are limits to free speech already, but when people suffer from the belief that the government courts can somehow parse all situations and regulate with fairness, we all lose. Incentivization of power is mathematically like gas law, where in gas or government, individual nearly random interactions add to a body-wide behavior that is so definite in its outcome, it can become an actual law of physics. That is something that I wish more people understood.

The final outcome of this decision will be a random event, either the continued power creep will continue forward incrementally or it will be held back for another day. The gas-law in this case is weighted toward the government power, as it more often is (think gas law). There is so much of it going on with respect to much more serious matters, than Mann’s feelings, or our ability to discuss a hypothetical government-funded charlatan without retribution is actually hard to get excited about. However, I cannot conclude in any other manner than the wrong decision would be a definite hit to free speech under the first amendment.

Jeff,
while this dispute plays out for different people on different levels, I believe that the battleground issue – and emerging as such – is whether people are obliged to accept the findings of government inquiries as proven fact, rather than whether people can recklessly call a public figure a “fraud” without any basis. I am not convinced that this latter right is either wise public policy or a necessary consequence of the U.S. First Amendment.

However, as ACLU et al forcefully argue, people do have the right to reject the findings of government inquiries, particularly when there are plausible criticisms of the inquiries (as noted and partly itemized by ACLU et al in respect of the various Mann inquiries.)

I am increasingly certain that this will be the battleground issue of this inquiry.

That Mann falsely characterized the results of the University of East Anglia, NOAA and the UK Government might make it that much easier to resolve the case on these grounds, but I don’t know whether the anti-SLAPP court can consider the truth or falsity of such claims.

I am increasingly certain that [people having the right to reject the findings of government inquiries] will be the battleground issue of this inquiry.

I was encouraged on first reading the head post, I was as the substantive arguments of the ACLU and major news organisations were brought out even more, in response to Nick Stokes, and I am again now. This isn’t everything James Delingpole is hoping for but to have a clear verdict on this issue would mean a lot.
Steve: deciding on this ground will undoubtedly leave everyone pretty dissatisfied since it will leave the most contentious issues unresolved. All the more reason why it seems a likely outcome to me.

“However, as ACLU et al forcefully argue, people do have the right to reject the findings of government inquiries, particularly when there are plausible criticisms of the inquiries (as noted and partly itemized by ACLU et al in respect of the various Mann inquiries.)”

Absolutely. But even more, people have the right to publicly argue that rejection. If this casts a harsh negative light on a public figure (like Mann), and it often does, then so be it. The greater public interest is always in protecting politically motivated speech, even if that hurts the reputations of some public figures. I do not, as a US citizen, have to avoid saying whatever I honestly believe is true about a public figure (eg. OJ Simpson is a murderer who managed to escape punishment due to a prejudiced and incompetent jury) even if what I say is clearly defamatory. I understand that the “rough and tumble” of US public debate is not acceptable in some other countries, but here it is in fact settle law. What Mann is doing is quite contrary to that settle law; anti-SLAPP laws are designed specifically to stop legal tactics likes Mann’s… tactics designed to financially punish those who choose to publicly criticize a public figure.

Steve: deciding on this ground will undoubtedly leave everyone pretty dissatisfied since it will leave the most contentious issues unresolved. All the more reason why it seems a likely outcome to me.

Disagree. To people who are most concerned about the free speech issue (including Steyn himself) it would be very satisfying.

If you can’t get from “government said so” to “actual malice” without more, that means Mann and his ilk can’t intimidate their critics with suits like this anymore (they’ll be dismissed much faster in the future, even in D.C.)…and the government can’t shield its favorite sons from criticism by appointing inquiries to “clear” them.

Steve, on appeal the court is supposed to consider only matters of law, not fact. Your posts on whether, for example as Mann specifically claimed, the Lord Oxburgh commission ‘exonerated’ Mann is a question of fact.
However, Steyn’s new amicus brief cleverly tries to draw the appeals court in anyway by pointing out not only that the amended complaint is false, but that Mann knew it was false when filed with the court because he had explicilty said so in his prior book. That goes to the chilling intent of the suit Mann filed, and the purpose of SLAPP statutes in the first place, both of which are relevant to the issue on appeal.

“Jeff,
while this dispute plays out for different people on different levels, I believe that the battleground issue – and emerging as such – is whether people are obliged to accept the findings of government inquiries as proven fact, rather than whether people can recklessly call a public figure a “fraud” without any basis. I am not convinced that this latter right is either wise public policy or a necessary consequence of the U.S. First Amendment.”

Steve,

US citizens have never, ever, accepted the findings of government inquires as proven facts. I can’t think of a inquire finding that is not suspicious.

And we have, for ever, recklessly called public figures ‘frauds’ and liars, without any basis.

Both to the benefit of our history and our society.

I think, maybe incorrectly, that the US is the only country with an explicit prohibition of prior restraint of speech (after Citizens United).

Steve: “rather than whether people can recklessly call a public figure a “fraud” without any basis. I am not convinced that this latter right is either wise public policy or a necessary consequence of the U.S. First Amendment”

You have loaded this clause somewhat with the “reckless” and the “without any basis;” nevertheless, I am at least partially in sympathy with this position. However, once one embarks down this path, the slope is going to get mighty slippery pretty quickly. If I say that I THINK that Steve McIntyre is producing fraudulent work and is a fraud (which is the same thing as saying that Steve McIntyre produces fraudulent work and is a fraud), I am expressing an opinion…without supplying any basis therefor: I just believe it in my heart. Am I not allowed to express that opinion without the fear of being sued? I am with JeffId on this and would say, of course I can. Am I being reckless? Some would say yes (and so would I), but I don’t think that makes it actionable.

I do not believe that what we are dealing with here is anywhere akin to what Justice Holmes said you cannot do, “Shout fire in a crowded theater when there is no fire.”

If I make a claim and link to the sources, then it is clear that my statement is an interpretation of those sources. As a reader you are free to go to the sources and see for yourself.

recall one of the arguments used to get Briffa and CRU off the hook WRT misleading charts in AR4 chapter 6.

basically, they could hide the decline in chapter 6, because the underlying literature ( briffa original work) did not hide the decline.

Steve Mc: Different situations. One is an opinion piece in a libel dispute; the other is a scientific assessment where prospectus-like disclosure is required.
While you are always alert for irony, I don’t think that there’s enough similarity to assimilate.

hmm I’m just observing the interesting similarity. the situations are different especially in regards to authorial standards..

Steve: Mosh, the IPCC Lead Author of the most contentious hide-the-decline was Mann, not Briffa, though Briffa and Osborn were parties to it. You are also making a factual error: the IPCC TAR citation did not go to an article that showed-the-decline, but to another Briffa publication that was only tangentially related. For the hyperlink to function as a defence, one presumes that it actually has to go to the government inquiry in question, rather than to a different government inquiry. One other important distinction that you overlook. It was an essential element of the ACLU argument that Simberg had disclosed that the inquiry had found otherwise (linking to it), while disputing the result. If Mann and Briffa had clearly disclosed the decline, there would be no complaint. I think that you’re trying way too hard to get to an ironic result, when there isn’t one.

I’m a little disappointed in ACLU’s brief. They are supposed to be an extreme First Amendment organization. They are not the lawyers for Steyn et al exhausting every avenue of argument. So for them to mention that the original post mentioned the government exonerations is not something they should be arguing. The writer is free to criticize without presenting contrary evidence.

I have been involved as an expert witness in some big money lawsuits. My experience is that a defendant can use the legal system to delay proceedings for an amazingly long time. I would love to see Steyn v. Mann get to court, but my experience says that this may be too much to hope for.

As a retired judge I find it extremely puzzling that Mann’s lawyers, who are apparently very well paid and presumably competent, would have allowed allegations to be included in the complaint and other filings, such as the obviously and demonstrably false statements regarding the various inquiry approvals of his work. It smacks of poor preparation and, perhaps, of being dominated by a forceful client. If I were hearing this matter, I would not like at all the fact that obvious misrepresentations had been made to the court in the sworn pleadings.

Steve: it’s hard to believe that independent lawyers wouldn’t be embarrassed by such falsehoods. However, I think that one of Mann’s lawyers has gone with him on a couple of occasions to the AGU convention to preach to climate scientists. That suggests that the lawyer is also infused with the “Cause” and that one should not assume that the errors and misrepresentations are entirely the fault of a forceful client. Because their pleadings include language more or less copied from SKS (including the list of supposed exonerations), I wonder whether the lawyers performed any relevant due diligence (e.g. reading the inquiry reports) and, if so, how they could have incorrectly characterized the reports in more or less the same way as SKS.

Yes, there was a filing (around April, I believe) by Bernard Grimm requesting permission from the court to withdraw from the case. I haven’t heard anything about why Grimm withdrew. (Bernie Grimm often appeared on the legal panel on Greta Van Susteren’s show on Fox News, especially back when it concentrated on legal issues.)

Well, Steve, it then appears that Mann has at least one or more lazy or incompetent attorneys. If they did not perform due diligence, or did not understand what they were reading or simply mischaracterized the reports, they have done their client and themselves no favors. If you are representing an individual who is suing someone for accusing your client of fraudulent statements, it does not appear to be the best of tactics to have your client swear to the truth of a number of facially incorrect allegations that might, in and of themselves, well be fraudulent. I think it is way more than embarrassing.
Steve: I agree with you that Mann’s false statements about the inquiries (the statements that Steyn calls “fraudulent”) were, at a minimum, “poor tactics” and probably fatal to his case. One of the reasons why I focussed on this aspect of the case in my commentary.

Although I did not at first grasp the rationale for or the importance of your extended commentary on the failure of those investigations to exonerate Mann, I certainly did later. Steyn, of course, with thanks to you, jumped right on the issue.

And thank goodness you took the time and effort to do that. For if you had not, who would have?

Until you delve into the details, you can’t appreciate how many gobsmackingly stupid things are the basis of, and have occurred during, the course of this litigation. The initial implausibility of the many stupid things that Mann has done is a risk for Steyn in this lawsuit. (I don’t know if the defendants have the ability to puncture the bubble of alleged rigorous science which Mann walks into court with on the basis of his position at Penn State and work for the IPCC)

JD Ohio, one of the important themes which ran through those Blackboard posts was the need for Steyn to engage competent lawyers in his defense. He has now done so.
Steve: Steyn has considerable experience in litigation and knew that he wanted competent lawyers. On the other hand, he wanted to steer a different course than National Review and its then counsel for reasons that seem quite reasonable to me. Some of the tut-tutting towards Steyn at the time made the entirely unwarranted assumption that he didn’t know what he was doing.

Idle speculation: Maybe this broad opposition to the suit gives Mann a face-saving exit plan – settle the case; spin as Dr Mann magnaminous in de facto victory for the sake of freedom of speech. Many of the media parties would no doubt play along.

Thanks for the pointer. The section where he links to Nick is I think worth repeating, for people even lazier busier than me:

Well, here we are nine months later, and the media grandees have gotten a little cozier with me. Some of Steve McIntyre’s commentators think that the ACLU/Big Media support is still only on the narrow procedural issue of immediate appealability, but that’s not so. More than half the brief is a principled free-speech defense of what I and Rand Simberg said – or as the contents page puts it:

II) THE CHALLENGED STATEMENTS ARE PROTECTED EXPRESSIONS OF OPINION ON AN IMPORTANT SCIENTIFIC AND PUBLIC POLICY DEBATE

So they’ve gone from being “my new friends” to “my new best friends”. They don’t really like me all that much, of course – anymore than The Globe & Mail or PEN Canada did in 2008. There’s no danger of me being offered a gig at The Washington Post or Time or The Chicago Tribune any time soon. Nor does it mean they agree with me on the substance. The Los Angeles Times, for example, refuses to print on its letters page any correspondence from so-called “climate deniers”.

But that’s the point: Their refusal to print dissenting opinion is their choice, not Michael Mann’s – and they want it to stay that way. Furthermore, were this weird insecure bully to succeed in shrinking the First Amendment to his own particular needs, the consequences would not be confined to “climate change” (on which they happen to agree with him) but would extend to every other aspect of public discourse. The ACLU & Co are very vigorous in where a victory for Mann would lead …

It’s all worth a read, even if Steyn’s bombastic style isn’t always to one’s taste. (I mostly enjoy it.) But I thought the point about the LA Times especially worth highlighting. What they do with their own editorial freedom is their business. What Mann does to overturn the good intentions of SLAPP is everyone’s.

. . .Because the climate-change debate is one of the most important and lively public policy debates of our time, stifling that debate with lawsuits will not only diminish our ability to have an open and honest discussion about climate change, it will hurt future discussions about anything controversial. Whatever you believe about climate change, you should hope that the D.C. Court of Appeals dismisses the case as soon as possible. . . .If Mann wins this lawsuit, he or his friends could easily find themselves on the other side of a defamation suit.

In my opinion, there exists only one item worth discovery in the Mann-Steyn court case.

That one item is the name of the sub-directory Steve McIntyre stated he found in the data package sent to him on Dr Mann’s instructions. According to the Climate Audit blog, one sub-directory contained an analysis that did not support Dr Mann’s conclusions concerning the “Hockey Stick” analysis. My recollection is that Steve McIntyre stated the name of that sub-directory was “censored”.

In my opinion this is the only bit of evidence that Mr Steyn can use to establish on the balance of probabilities doubt that his allegations concerning Dr Mann were false.

(I am assuming that as defendant in a civil case he has only to establish that on the balance of probabilities his allegations were not false. He does not have to meet the higher standard of proof that the allegations were true either ‘beyond a reasonable doubt’ or ‘on the balance of probabilities’.)

Even that bit of supporting evidence cannot stand if the court upholds the plaintiff’s claim that Mr Steyn’s statements were made with malicious intent. However it appears that where the plaintiff is a public figure and where the defendant is famous for mocking public figures, the bar is

I enjoyed Mark Steyn’s blog as much as anyone, but having read the plaintiff’s claims, I am not very optimistic about Mr Steyn’s prospects.

The one bit of evidence mentioned above concerning the data package sent to Steve McIntyre has not appeared anywhere in documents that the defendant has submitted to the court. Mr Steyn should consider calling for it to be entered as evidence during discovery.

However it appears that where the plaintiff is a public figure and where the defendant is famous for mocking public figures, the bar is set very high for a complaint based on allegations of personal malice.

As a contrast to “limited-purpose public figure” it’s not bad…at least, unlike so many legal (and nonlegal) terms, it conjures up the thing it’s referring to, does not invite confusion with some other meaning of the same words, and is easy to explain.

I’d rather use a four-word phrase that people understand than a single word, for which I have to keep explaining the meaning. Keep this in mind if you’re trying to come up with a better term.

(The term “actual malice,” by contrast, does sometimes confuse people because they think of “malice” as “hatred” instead of “disbelief or reckless disregard.”)

In my opinion this is the only bit of evidence that Mr Steyn can use to establish on the balance of probabilities doubt that his allegations concerning Dr Mann were false.

(I am assuming that as defendant in a civil case he has only to establish that on the balance of probabilities his allegations were not false. He does not have to meet the higher standard of proof that the allegations were true either ‘beyond a reasonable doubt’ or ‘on the balance of probabilities’.)

——————————————————
Steyn doesn’t have to prove anything of the kind. The burden of proof is on Mann – that Steyn knew that what he wrote was false, and that it was done within the legal meaning of “malice” – and that it meets the standard applicable to public figures.

That is one reason why the high hopes that some people have that this trial will be about science are misguided. It is about libel law, not science.

Re the amicus briefs, the Cato et al brief is a nice summary of the issues surrounding the non-advisability of the courts in getting involved in scientific debates, and I also recommend the internet bloggers’ combined brief as an excellent technical summary of statute interpretation relevant to the case. Steyn has got some formidable legal firepower on his side in those two, as well as in the ACLU one.

“What about putting Mann on Oath…” Everyone is saying that, but he doesn’t show any awareness of the need to be accurate in his remarks. His original writ was riddled with what normal people would call downright lies, the big two being that he’s a Nobel Laureate and that inquiries his work wasn’t considered in had exonerated him. That is not normal behaviour. There is a pattern to this outside of the court case where Mann consistently says things that aren’t true, and he must know they’re not true. (He’s still saying that M&M asked for his data in Excel format). Given that trait he won’t respond with the answers we all know to be true, but with the answers he believes to be true, which may, or may not get him into trouble.

Of course there is one inquiry that didn’t exonerate him whose Chairman has been hounded by his associates ever since and whose careful avoidance to accuse Mann et al of fraud may now be less circumspect given what he’s been through. That is Professor Wegman.

Well, shucks, I just read Steyn’s latest piece and have found that he quoted my post here, together with Steve’s response. I always knew that someday I would be famous! But he could have at least mentioned that it came from the well-known and judicious PhilH. How about it, Mark?

The fact that so many organizations are supporting the defendants should help them immensely. The support of academic organizations was also a great help to Mann in the Virginia FOIA litigation, which I believe was wrongly decided. (I don’t believe that emails associated with government funded research are proprietary.)

The investigations didn’t decide on the validity of the research. They investigated whether there was misconduct.”

However, as Steyn notes, Mann claims differently:

“In his interview, Muller even maligned my own work on the “hockey stick” reconstruction of past temperatures. He falsely claimed “the hockey-stick chart was in fact incorrect” when in fact the National Academy of Sciences affirmed our findings in a major 2006 report that Nature summarized as “Academy affirms hockey-stick graph.”

thisisnotgoodtogo Aug 16, 2014 at 12:13 AM
The complaint is describing how CEI put a petition to EPA to reconsider their endangerment finding, and how EPA responded. There is no claim that this was specifically about Dr Mann. In the course of that response to CFI, the EPA cited the NAS investigation of proxies.

I’m responding to two remarks you’ve posted only because you express yourself trenchantly, and trenchancy delineates clear lines. I’m sure many people agree with you, but there is background which casts the ACLU brief, and the decision of the lower court, in different lights, lights of which the Appeals Court will be aware.

“The the ACLU et al brief is a welcomed contribution, since the court is more likely to consider the arguments of organizations with no direct interest in the case beyond protection of First Amendment rights.”

Big Print stands close behind the ACLU brief and Big Print had been lobbying for immunity from the law of defamation in all common law jurisdictions for a century before Sullivan. In the normal course of its business it libels people, and libelling people is especially profitable, libel sells newspapers, the public love it. However, libel suits are harmful to the bottom line, Big Print therefore benefits hugely from immunity and will invest heavily to obtain it.

The only country where it’s succeeded in obtaining immunity is the US and, there, it continues to invest in protecting and extending it. The Court may simply regard the list of publishing interests which has attached itself to the ACLU brief as a list of the usual suspects. In Sullivan, the NY Times argued exclusively for a press immunity, it was only later that the courts extended it to the little people.

“I can see no explanation for the lower court rulings on this case short of political allegiance to the left or utter stupidity and incompetence.”

The judgement in the trial court does read strangely (to someone unfamiliar with US constitutional law), however, Mann has demanded jury trial, and under the US constitution the judges are therefore precluded from weighing evidence.

The words “likey to succeed on the merits” are a term of legal art taken from applications for interim relief, that is a temporary order pending trial, not a final order. Judges may weigh evidence (amongst other things) in making a temporary order in a matter which must be decided by jury, but only the jury may weigh evidence in making the decision that any final order is based upon.

Even then, in the kaleidoscope of American courts, the higher courts are riven on what “likely to succeed on the merits” means in relation to a temporary order pending trial. The minority opinion is that these words require the judges to weigh evidence, the preponderant view is that it requires the judges to ascertain only that some evidence exists for all the elements that the plaintiff must prove.

Again, the words “clear and convincing” are a burden of proof, like “on the balance of the evidence” and “beyond all reasonable doubt”. Judges may not determine whether a burden of proof has been met, that’s exclusively the province of the jury. They may only determine whether admissible evidence which a jury could find “clear and convincing” exists. It’s much the same as determining if admissible evidence exists to go to the jury in a criminal trial where the burden is “beyond all reasonable doubt”. So long as evidence exists as a matter of law, it goes to the jury, the jury must weigh it and decide if the burden of proof is met.

The lower court strained to construe the wording of the Anti-Slapp Act in a way which didn’t require it to weigh evidence, and considered only matters of law. The reason for this is, if it weighed evidence and dismissed the Plaintiffs claim, a final order, the Act would be unconstitutional. Constitutional considerations are an alternative explanation for the lower court’s decision. The Appeals Court will have to navigate the same waters.

Big Print stands close behind the ACLU brief and Big Print had been lobbying for immunity from the law of defamation in all common law jurisdictions for a century before Sullivan…The only country where it’s succeeded in obtaining immunity is the US…

Not true. “Big Print” can and does lose libel actions when the plaintiff has evidence. See Curtis v. Butts or Eastwood v. National Enquirer. The press has no “immunity”…only a very speech-friendly standard.

In any case I don’t see why the court would, or should, take up an “industrial conspiracy” mindset (“Oh, this is favored by Big XXXX…so discount it.”)

The judgement in the trial court does read strangely (to someone unfamiliar with US constitutional law).

The judgment in the trial court reads strangely to people who are familiar with U.S. constitutional law, especially in the way it glides over the central issue (which SteveMc has identified): how you get from “the government says I’m innocent” to “Steyn and Simberg believe the government when it says I’m innocent.” (If you can’t make that leap, the complaint fails under old-fashioned 12(b)(6) dismissal, without regard to SLAPP standards or the weighing of evidence.)

I have a different reading than SteveF, though. I can think of a third reason the judge would do this: namely, expectation that the case will settle. There are state-court judges with this reputation: that when they get a motion to dismiss, however well crafted, they’ll most likely get out a rubber stamp that says “DENIED.” Because they know that the vast bulk of cases that don’t die on motion practice will settle….and when the case settles, there’s nothing more for the judge to do, nor anything for an appellate court to act on.

Judge Weisberg’s order ends with a comment that the case need only be as expensive as the parties wish to make it…to my ears, a heavy-handed hint that he wants to see it settle. A tin-eared judgment in this case…but it would work in many, many others.

I completely agree that Judge Weisberg wants the case to settle. I am a lot less generous that you about his motives. His denial of the SLAPP motion is nearly as appalling a decision in a legally important case as I can remember. (Only Kelo v New London stands out in my mind as worse in terms of the potential damage done to personal liberties. Kelo was so bad that many state legislatures promptly passed laws forbidding similar public seizure of private property. A very bad day for the Supreme Court.) I am forced conclude that Judge Weisberg is either grotesquely uninformed, or incapable of a decision divorced from his own political views. A settlement is a victory for Mann, which he will use to threaten his political adversaries. IMO, Weisberg is a truly horrible judge. He should retire, and fortunately, he is close to that. Enough damage done.

In light of a settlement shutting off the possibility to gain compensation for legal costs by the defendants, indeed, it would be a victory for the plaintiff.

I notice the term used by bobdenton to describe large media organizations as “Big Print” tends to put the discussion on terms of profit motivated organizations looking to the bottom line and away from the points being made about Slapp suits used to inhibit free speech about issues frequently dealing with “Big Government”. The constitutional issues of a jury of your peers is something that bobdenton uses to contrast with “Big Print” which deflects again the conversation away from “Big Government”. It matters little whether freedom of speech can be inhibited through a jury trial or bench trial – and as a matter of practice if one wanted to extend the trial and make it more expensive for the defendants a jury trial would be the better choice.

I often disagree with the MSM (which would I assume includes all of Big Print) but I would not want to ever see those organizations free speech inhibited directly or indirectly by Big Government or any other organizations or individuals. Also that the US is somewhat unique in this particular matter in protecting speech does not make that contrast a valid point against Anti-Slapp.

I have a feeling that we won’t ever be completely reconciled on the nuances of these proceedings, but there is a spectrum of views even among those who wish the Defendants well, and my experience has taught me that to defeat an opponent you must strain to get into his mind and understand his case, that’s the only way you’ll be prepared at trial to meet their case, put at its strongest.

“The press has no “immunity”…only a very speech-friendly standard.”

In jurisprudential-speak, Sullivan created a qualified privilege for the press, the corollary of which is an immunity defeasible by proof of “actual malice”.

“how you get from “the government says I’m innocent” to “Steyn and Simberg believe the government when it says I’m innocent.”

You’ve chosen to put the most pejorative spin possible on the reasoning of the trial court, but the answer, nonetheless, is prosaic – by circumstantial evidence. The Defendant’s self-serving statements about his subjective beliefs are not only, not conclusive, but carry very little evidential weight, and his state of mind can be proved by circumstantial evidence – in the same way that “mens rea” (a guilty mind) is proved in criminal courts, day-in day-out, year-in year-out. The trial court has found that circumstantial evidence exists that could support a favourable finding by the jury. The use of circumstantial evidence to prove “actual malice” for the purpose of a defamation action has been challenged and has been held to be admissible.

Your question, spun the other way, would be:

“”How do you get from “bodies charged with the responsibility of enquiring into misconduct by the Plaintiff have concluded that there was none”, to, “Steyn and Simberg harboured serious doubts that Mann had tortured and molested data and committed fraud to a degree that warrants him being ostracised by his professional colleagues in the way that society ostracises a convicted, serial sex-offender? “”

“Judge Weisberg’s order ends with a comment that the case need only be as expensive as the parties wish to make it…to my ears, a heavy-handed hint that he wants to see it settle”

We can agree on that. I imagine he sees it as a foolish action brought by fragile ego, with a highly uncertain outcome that can only blight the lives and economies of the parties for years and can’t possibly achieve what any sensible Plaintiff would hope for.

In jurisprudential-speak, Sullivan created a qualified privilege for the press, the corollary of which is an immunity defeasible by proof of “actual malice”.

Not so. If the plaintiff is a public figure, the defendant gets the benefit of the “actual malice” standard regardless of whether he is part of “the Press” or “Big Print” or whatever you call them. Everyone has the protection of this standard, which is not a “privilege” of any one group. This is a good thing.

‘course the defendant usually is the press, because that’s who makes the most public statements and has the money to pay out big judgments, but you’ll never see a defendant having to prove he was part of the Press to get the protection of the standard. (See St. Amant v. Thompson and Hutchinson v. Proxmire for famous cases where the defendant was not a journalist or media corporation, and yet got the benefit of the standard; in the latter case the Court reversed because the plaintiff was not a public figure, but not because Sen. Proxmire was not “Press.”)

You’ve chosen to put the most pejorative spin possible on the reasoning of the trial court, but the answer, nonetheless, is prosaic – by circumstantial evidence.

But the plaintiffs haven’t cited any circumstantial evidence that, in any way, shows that Steyn and Simberg “in fact entertained serious doubts” about what they said (good language from St. Amant!). And they didn’t present any such evidence in responding to the anti-SLAPP dismissal, and the trial judges, in denying the motions, didn’t cite any either. If they had cited such evidence, I would’ve referred to it; but all the plaintiffs have brought is their claims that they were “exonerated” by these mostly-governmental inquiries.

Your question, spun the other way, would be:
“”How do you get from “bodies charged with the responsibility of enquiring into misconduct by the Plaintiff have concluded that there was none”, to, “Steyn and Simberg harboured serious doubts that Mann had tortured and molested data and committed fraud to a degree that warrants him being ostracised by his professional colleagues in the way that society ostracises a convicted, serial sex-offender? “”

No. First, an opinion about what someone deserves or what his conduct warrants is just that – an opinion. The “Sandusky” bit is not a statement of fact and does not imply a statement of fact; and therefore cannot be the basis for a defamation claim. (In fact, I think you’re overinterpreting even that part, but it doesn’t matter.)

Spin the rest any way you like. The fact that a body was “charged with” investigating something does not, in any way, imply that Steyn or Simberg believed that body when it reached its conclusions. Instead you need evidence – circumstantial or otherwise – that they so believed; and that is what Mann does not have. He might be hoping to tease some kind of admission out of the defendants in a deposition; but he doesn’t have it now, or at least he hasn’t shown it.

I imagine he sees it as a foolish action brought by fragile ego, with a highly uncertain outcome that can only blight the lives and economies of the parties for years and can’t possibly achieve what any sensible Plaintiff would hope for.

I don’t agree with that at all (except for the “fragile ego” part). If Mann gets anything except a dismissal (preferably with costs), I think he is getting exactly what he wants: intimidation. The very kind that both Sullivan and the anti-SLAPP statute are explicitly designed to combat. Others will be afraid to speak ill of him or his work for fear of having to fight the lawsuit. Even a defense victory in front of the jury wouldn’t stop this – it would just tell people that Mann got the wrong jury that day, but maybe a different jury would find for him.

The Defendant’s self-serving statements about his subjective beliefs are not only, not conclusive, but carry very little evidential weight, and his state of mind can be proved by circumstantial evidence

Certainly defendants’ professions of good faith aren’t conclusive, and state of mind can be proved by circumstantial evidence, but I’d like to see your basis for claiming that defendants’ statements about their subjective beliefs are given very little weight. I’ve read plenty of defamation cases, from the Supreme Court and other courts, in which the court refers to such statements without any suggestion that they don’t really matter. For example, Anderson v. Liberty Lobby, Inc.: “He [the author] also stated that he had at all times believed and still believed that the facts contained in the articles were truthful and accurate.”

“I imagine he (the presiding judge) sees it as a foolish action brought by fragile ego, with a highly uncertain outcome that can only blight the lives and economies of the parties for years and can’t possibly achieve what any sensible Plaintiff would hope for.”

A subject for another time and place perhaps, but one that should not be ignored is that, in contrast to the defendants and perhaps the Plaintiff, the legal representatives economies can be significantly enhanced by what many call a useless pursuit or worse an imposition through the justice system. Even the judge of whom we want to mind read suffers none at all from the US being the most litigious nation on earth.

In my view at least part of this discussion should veer into the direction of why our legal system tends to be tolerant of frivolous lawsuits and suits even concluding with gullible and uninformed juries awarding significant damages.

“The United States is already the most litigious society in the world. We spend about 2.2 percent of gross domestic product, roughly $310 billion a year, or about $1,000 for each person in the country on tort litigation, much higher than any other country. This includes the costs of tort litigation and damages paid to victims. About half of this total is for transactions costs — mostly legal fees.”

I think in most proceedings self-serving statements have always been taken with a pinch of salt – “They would say that wouldn’t they?” Especially where the truth is inaccessible to anyone else, as with internal states of mind.

Consider the difference between:
Q. Did you commit academic fraud?. No. and, Q. Did you commit academic fraud? A. I’d rather not say.
It can be quite important to put in a self-serving statement. So I don’t say they don’t really matter. But, as for weight?
Think of a see-saw with a self-serving statement at one end and an admission against interest at the other. How many self-serving statements would it take to raise the admission against interest from the ground. An infinite number? They have very little evidential weight.

The passage you cite from Anderson comes in a list of the contents of an affidavit. The court is simply listing the evidence put in by a party.

Unfortunately, I couldn’t open the second of your links. I’d be interested to see the cases you refer.

The link works for me – but at least I can give you the citation. It’s Dillon v. Seattle Deposition Reporters, No. 69300-0-1, 316 P.3d 1119 (Wash. App. Jan. 21, 2014). Google it and you should be able to get a pdf (which is what I was linking you to); or if you have a legal research account or access to a U.S. law library you know what to do.

Pages 42 to 46 establish the Washington and discuss the Minnesota case law on the subject and affirm that SLAPP laws with a “summary judgment” standard do not violate the right to trial by jury.

bobdenton: I think in most proceedings self-serving statements have always been taken with a pinch of salt – “They would say that wouldn’t they?” Especially where the truth is inaccessible to anyone else, as with internal states of mind.

That really doesn’t sound like much support for your original assertion on how courts do treat such statements. It sounds more like your opinion on how courts ought to treat such statements.

The defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

Neither the phrasing (“cannot [] automatically insure”) nor the rather extreme nature of the listed exceptions (“a story is fabricated”; “the product of his imagination”; “based wholly on an unverified anonymous telephone call”) suggests that a profession of good faith is treated with a grain of salt.

I disagree in part: The anti-SLAPP law in DC (and in many similar laws elsewhere) is remarkably clear: it expects the court to evaluate whether the case can be reasonably considered a SLAPP or a normal defamation lawsuit. The Supreme Court’s Sullivan standard of ‘actual malice’ is a very high hurdle, and this is something the lower courts most certainly can evaluate: Is Mann a public figure? If so, is there credible evidence of ‘actual malice’ by the defendant(s)? (Did they really not believe what they wrote was true? How can you prove that?) All of which speaks to the fundamental issue: a defamation suit which fails to pass the Sullivan ‘actual malice’ standard is very unlikely to prevail through the appeals process, even if a friendly judge and jury might side with a public figure and award damages (and certainly this seems to me the likely outcome in DC based on the political and judicial landscapes… proving clever venue shopping, if nothing else). If lower courts were to consistently follow the DC court, then all anti-SLAPP laws would be de facto repealed, and SLAPPs would remain always an effective tool for the influential to silence public criticism.

I agree with your comment in part: If the DC lower court believes the anti-SLAPP law is fundamentally unconstitutional, then they most certainly should resist following it. The problem is, I have seen nothing in the lower court rulings that indicates they doubt the constitutionality of the law. If you can point to information which says otherwise, please do. In light of Sullivan and other cases, I rather doubt that the Supreme Court would agree that anti-SLAPP laws are unconstitutional, unless they are willing to simultaneously reverse Sullivan, but we will never know for sure unless anti-SLAPP laws are actually challenged on a constitutional basis.

“If lower courts were to consistently follow the DC court, then all anti-SLAPP laws would be de facto repealed, and SLAPPs would remain always an effective tool for the influential to silence public criticism.”

It appears to me that the approach taken emasculates the law as intended by the legislature. It effectively reduces it to a bog-standard strike-out application. Combs Green J did a dance around this, but Weinberg J did little to conceal the fact.

“I rather doubt that the Supreme Court would agree that anti-SLAPP laws are unconstitutional, unless they are willing to simultaneously reverse Sullivan,”

I don’t see any dependency between Constitutionally protected speech (1st Amendment and Sullivan) and Anti-Slapp protection. Sullivan preceded the Anti-Slapp movement and many states have no Anti-Slapp. In turn, Anti-Slapp could operate equally well in the absence of constitutionally protected speech.

It appears to me that the approach taken emasculates the law as intended by the legislature. It effectively reduces it to a bog-standard strike-out application. Combs Green J did a dance around this, but Weinberg J did little to conceal the fact.

What is a “bog-standard strike-out application”? A 12(b)(6) dismissal standard? That isn’t so.

The more restrictive (“California”) interpretation of the statue is a “summary judgment” type procedure, as noted here. (And that standard has passed constitutional challenges in Washington and Minnesota on the trial-by-jury-weighing-of-evidence grounds you cite; see pages 42 to 46 here.) It’s stricter than 12(b)(6) dismissal because it requires the plaintiff to come up with evidence…not just allegations…to support actual malice and the other elements.

In this case, the trial judges didn’t hold Mann even to that standard…they did not cite a scrap of evidence that could support a finding of actual malice (because there isn’t any); that being so, the appeals court may not have to decide whether the D.C. statute requires anything more (which I apprehend is what SteveMc means by saying the “most contentious” issues may be left undecided). But if the trial court opinions stand…they eviscerate Sullivan itself, not just the anti-SLAPP law.

(As I commented elsewhere: If Governor George Wallace, the Alabama Department of State, a committee of the Georgia State Legislature, and the Knights of the White Camelia had all “investigated” Sullivan and “cleared” him of any offenses against the civil rights of blacks – and the New York Times had been aware of this – I don’t think it would’ve made a particle of difference to the outcome in Sullivan, and it certainly shouldn’t have.)

“”In jurisprudential-speak, Sullivan created a qualified privilege for the press, the corollary of which is an immunity defeasible by proof of “actual malice”.

Not so. If the plaintiff is a public figure, the defendant gets the benefit of the “actual malice” standard regardless of whether he is part of “the Press” or “Big Print” or whatever you call them. Everyone has the protection of this standard, which is not a “privilege” of any one group. This is a good thing.””

This is a snippet from one of my previous comments:

“ In Sullivan, the NY Times argued exclusively for a press immunity, it was only later that the courts extended it to the little people.”

I was making a point about the meaning of “privilege” and “immunity” as terms of art, and the relation between them.

“But the plaintiffs haven’t cited any circumstantial evidence ..”

I don’t understand some of the convoluted language and apparent internal contradictions in the material passage, but, clearly, the trial court found that there was circumstantial evidence of actual malice. For brevity I excise this passage:

“There is however sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false. Plaintiff has been investigated several times and his work has been found to be accurate. In fact, some of these investigations have been due to the accusations made by the NR Defendants. It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants. Thus, it is fair to say that the NR Defendants continue to criticize Plaintiff due to a reckless disregard for truth. Criticism of Plaintiff’s work may be fair and he and his work may be put to the test. Where, however the NR Defendants
consistently claim that Plaintiff’s work is inaccurate (despite being proven as accurate) then there is a strong probability that the NR Defendants disregarded the falsity of their statements and did so with reckless disregard.”

Clearly the judge misstated the issues investigated as accuracy rather than honesty and conduct, but the circumstantial evidence referred to goes to honesty and conduct rather than accuracy.

“No. First, an opinion about what someone deserves or what his conduct warrants is just that – an opinion.”

It implies conduct, an implication of fact. If the fact is not in dispute then the opinion, to which others may be invited, and which may cast a person in a prejudicial and defamatory light, appears to be absolutely privileged constitutional-free-speech. In the present case the implied conduct is in dispute, thus the Plaintiff argues it attracts only qualified privilege.

“I think he is getting exactly what he wants: intimidation. The very kind that both Sullivan and the anti-SLAPP statute are explicitly designed to combat. Others will be afraid to speak ill of him or his work for fear of having to fight the lawsuit.”

Who would be intimidated? Name names. Steve McIntyre, Antony Watts, Lucia, Judith Curry, Brandon Shollenberger etc?? At best, a few polemicists might trim the high notes from their rhetoric.

When bobdenton says the trial court found circumstantial evidence for malice and then quotes the court in the excised passage he has in effect made the case presented in the Amicus brief, who unlike bobdenton, did not reference/excuse the trial courts inability to communicate but rather pointed to matters of law and Big Government, or its facsimile, not being an arbiter of the truth.

“I don’t understand some of the convoluted language and apparent internal contradictions in the material passage, but, clearly, the trial court found that there was circumstantial evidence of actual malice. For brevity I excise this passage:

“There is however sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false. Plaintiff has been investigated several times and his work has been found to be accurate. In fact, some of these investigations have been due to the accusations made by the NR Defendants. It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the NR Defendants. Thus, it is fair to say that the NR Defendants continue to criticize Plaintiff due to a reckless disregard for truth. Criticism of Plaintiff’s work may be fair and he and his work may be put to the test. Where, however the NR Defendants consistently claim that Plaintiff’s work is inaccurate (despite being proven as accurate) then there is a strong probability that the NR Defendants disregarded the falsity of their statements and did so with reckless disregard.”

In relation to evidence, all the court is required to do, at this stage, is decide if there is a sufficient evidential foundation on which a reasonable and properly directed jury COULD find actual malice proved to the required standard in relation to the words complained of. You can argue as to whether the court did that, but putting that aside, if the matter goes to the jury, the jury is the arbiter of truth, not the judge, not any body, government or otherwise, whose findings may be admitted in evidence.

As regards, say government, it can no more be argued that allowing the result of a government investigation to be put in evidence amounts to saying a fact must believed because the government says so, than would putting in the decision of a jury. Like anything anyone else says the finding can be considered on its merits.

You’re not required to believe the findings of a jury who acquit a defendant on a criminal charge. You may still believe he’s a murderer. Many people still believe OJ Simpson was a murderer, and say so. If he sued for libel and the issue of actual malice arose he may be able to admit his acquittal as conclusive evidence of his innocence, but just because he’s innocent doesn’t oblige anyone to agree with the jury’s verdict and they would be free to say why they honestly believed he was a murderer, and the jury would be free to accept the explanation.

Bobdenton’s reply explains why the presiding judge’s stated reasoning was wrong in allowing the Mann case to proceed, i.e. based on various bodies finding of truth of Mann’s accuracy in the contentious issues of the case. (Actually those bodies were deciding on very much more limited issues than the accuracy of Mann’s work.) I think he is also implying that the presiding judge is allowed a very wide range of speculation on the matter of which a jury might be convinced by the Plaintiff’s arguments at trial. Bobdenton states that in these matters “the jury is the arbiter of truth” which in the US system of justice means that the jury is an arbiter of guilt or innocence in criminal cases and liability in civil cases, but without claim for that decision being truth outside the legal system.

The “jury as arbiter of truth” is very different than the reference to truth in matters of science and it is that reference (to science) that is the subject of this case and one to which the Amicus brief pointed in its criticism of the court’s ruling. Could the presiding judge somehow have confused the difference between how the legal system and science views truth?

Like anything anyone else says the finding can be considered on its merits.

It can’t. As we discussed in this thread, Penn State’s findings would be hearsay, and as such inadmissible to prove anything about Mann or his work.

The only conceivable use for the findings is to prove, not that the findings are true (that’s hearsay), but that Steyn believed them (i.e., “effect on the listener”). But the fact that the findings exist does not even begin to prove that Steyn believed them. Like anything anyone else says, there would have to be evidence of that.

(If the Pope made an ex cathedra pronouncement that the stick wasn’t fraudulent, and Steyn was shown to be a devout Catholic, that might get you there — though it would run into other issues — but there’s no evidence at all that Steyn’s a “Penn State Believer.”)

Similarly – if I say that OJ murdered Nicole, he can’t get past the “actual malice” standard just by citing his acquittal, or the masses of people who believe(d) in his innocence. He’d need evidence that I didn’t believe what I said. And if you say that the LAPD faked the evidence against OJ, they can’t use his liability in the civil trial, or the masses of people who believe in his guilt, to get past actual malice. They’d need proof that you didn’t believe what you said.

“In Sullivan, the NY Times argued exclusively for a press immunity, it was only later that the courts extended it to the little people.”

I was making a point about the meaning of “privilege” and “immunity” as terms of art, and the relation between them.

So long as it’s clear that the Sullivan standard does, in fact, apply to all us “little people,” and does not create a true “immunity” for “Big Print” or anyone else, and is therefore neither a privilege nor an immunity.

(The Speech and Debate clause in the U.S. Constitution, by contrast, is both a privilege and an immunity; but it only applies to a very small class of public officials under certain circumstances.)

“….Where, however the NR Defendants consistently claim that Plaintiff’s work is inaccurate (despite being proven as accurate) then there is a strong probability that the NR Defendants disregarded the falsity of their statements and did so with reckless disregard.”

(my emphasis). They’re using the word “proven” to mean, “Penn. State, the Department of Commerce, etc. have said I am innocent.” That’s a whole bunch of words to say “The government says I’m right and you just had to believe them.” But the jump from “the government said so” to “you believe it, or you just don’t care” — that’s the gap that they have no evidence for. And the judges didn’t address it, nor could they.

To say they don’t need evidence to bridge that gap is to establish the Backdoor Sedition Act in Mann’s favor. Per my comment here such a doctrine would’ve given Sullivan an easy out, and established a real privilege…for people with friends in the government, who are willing to “clear” them with cursory “investigations.”

But no such privilege exists, or ought to exist, under the First Amendment.

It implies conduct, an implication of fact. If the fact is not in dispute then the opinion, to which others may be invited, and which may cast a person in a prejudicial and defamatory light, appears to be absolutely privileged constitutional-free-speech. In the present case the implied conduct is in dispute, thus the Plaintiff argues it attracts only qualified privilege.

No. Your spin on those words was, “He deserves to be ostracized just like Sandusky” (I think you were seriously straining those words to get even that far, but that was your reading of them). And that does not imply any fact specific enough to be actionable as libel. If someone says, “Joseph W. deserves to burn in Hades,” I’ll never get a red cent for libel.

I think “molested and tortured data” does imply some facts — though I have seen some strong arguments to the contrary — but that is another story.

Who would be intimidated? Name names. Steve McIntyre, Antony Watts, Lucia, Judith Curry, Brandon Shollenberger etc?? At best, a few polemicists might trim the high notes from their rhetoric.

Freedom of speech only for predicted defendants? That’s an awful idea. You have no way of knowing who will think there’s something wrong with Mann’s work, or his scientific integrity, or want to write about it in the future; that gives neither you nor Mann the right to shut them up!

As it happens, Minnesotans for Global Warming were already intimidated into removing a joke video because of Mann’s lawsuit threats (a joke, mind you, a cartoon with a cute song); and if he establishes that Penn State’s inquiry has “deSullivaned his work,” he’ll take his tactics wherever he pleases.

“Trimming the high notes” is a cute euphemism for using government power to intimidate people from using their freedom of speech. A full-throated debate from one side, and muted notes from the other, would doubtless suit Mann — especially since his side has the “commanding heights” of U.S. public education, the mainstream media, the Presidency, and a great deal more. But it is the opposite of what the First Amendment is designed to protect.

I should add – when the U.S. Supreme Court analyzes a law or policy for its “chilling effect” on free speech, they do not require anyone to “name names” of whose speech will be chilled. They instead look to see if the law has that tendency, and act accordingly if it does…especially if that speech is on politics or public policy.

“We rest on the narrow ground that the addressee, in order to receive his mail, must request in writing that it be delivered. This amounts, in our judgment, to an unconstitutional abridgment of the addressee’s First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect…”

Google self- serving statements. That will inform you how self-serving statements have been regarded by the courts for centuries. Those made out of court are inadmissible, often those made in court are stricken from the record (in the US). Self-serving statements made in court may be admitted where they have some evidential value, but are readily outweighed by any inconsistent evidence. The starting point is that self-serving statements inherently carry very little weight, but the weight actually given them by the trier of fact is up to the trier of fact.

I’m not going to Google anything. Either make your point yourself or don’t waste my time.

In any case, when the burden of proof for the other side is “clear and convincing,” what would it would it mean to say a profession of good faith is treated with a grain of salt? If the standard were a preponderance of the evidence, it would mean that almost any contrary evidence would be sufficient to overcome the assertion of good faith. But once a defendant has claimed to have acted in good faith, a public-figure plaintiff must prove with convincing clarity that the claim is false. That hardly amounts to giving the statement little weight.

I think people need to readjust their expectations. The belated intervention of heavy-weight news organisations and the ACLU, even if through gritted teeth because of their dislike of Steyn, combined with blatant and demonstrable falsehoods in the pre-trial statements, have in all probability lost him the case. But then again, OJ was found innocent.

Despite what some my be hoping, I don’t think that result will deliver Mann nailed to a cross, though the Steyn counter-suit might possible do just that.

However, there’s a bigger victory than just defending the fourth estate’s ability to vigorously comment on public figures. The novel ploy of using a court to decide on the scientific merits of a controversial branch of science looks to be stillborn.

Support for Mann has always been hesitant, even with the climate science community; the perception has always been he’s too much of a loose cannon. My feeling is they’ll walk away for good now.

I’ll have to take issue with your opinion. First of all, Steve’s arguments are not just “laine blanc” as you say. They are the result of a carefully parsed examination of the facts. Secondly, France and Austria are irrelevant! But I will agree, as with all lawsuits, in the end someone is going to get screwed! :)

Perhaps obvious to many but it just occurred to me that a very broad group of publications and organizations are going to be informed, for the first time ever, about some aspects of the corrupt side of the climate debate.

I was thinking about that as well. And then the thought came to me (not falsifiable in the Popperian sense) that some of them already knew that Mann and his ilk were dodgy. They’ve put with him and them to advance political objectives or even simply to keep certain grudges going. But when it came apparent that he was really threatening free speech they knew there was nothing deep and genuine in the commitment to him. Not a really likeable guy.

Don’t forget, this is the era of criminalization of speech. Recall Steyn’s long battle in Canada? Consider how “hate speech” somehow makes a murder “worse” and deserving greater punishment. Even Steyn’s countersuit may be used as a reason to let the main case proceed. A SLAPP finding in Steyn’s favor may be considered res adjudicata for elements in the countersuit.

And it IS the DC Circuit.
And Harry Reid DID stuff that circuit using the “nuclear” option.
And when courts want to craft reasons to keep the Greenies happy, they’re quite imaginative.

I’d wager the DC Fed Courts will simply let the case proceed, albeit a a pace a tortoise would find slow.

I recall Dr. Curry posted something when this all started. She warned Dr. Mann that he had taken on an strong and formidable opponent and warned Dr. Mann to show care in what he said. Can’t be bothered to find it tonight, but it is probably still readable at Dr. Curry’s sight. Anyway. She has been shown to be prescient. Dr. Mann could very well lose and in losing, assure that Steyn will win his counter suit. Dr. Mann is living in ‘interesting times’. I’m wondering what the other denizens at realclimate are saying behind closed doors. Guilt by association is a bad thing, but they are going to suffer from it.

There has been much comment here about “actual malice” and the requirement that the defendant must have believed that his accused statement was false. However in looking up “actual malice” on the web, I found that there is another possibility that the defendant acted in reckless disregard for the truth. i am wondering if the judge in this case is using this definition of “actual malice” and feels that the various investigations have established the accuracy or “truth” of Mann’s findings. This could be in the same way in the same way that Newton’s Laws could be considered to be “truth”

Does this interpretation, on my part, have any validity?

Steve: there are vanishingly few cases where US “public figures” have demonstrated “actual malice”. You are parsing terms that have proved very difficult to demonstrate. “reckless disregard” in US libel law (as I understand it) does not equate to recklessless as usually understood in tort law. You’ll have to read the case law to get a feel for just how hard it is for a case by a public figures to survive dismissal. That’s why Mann cited the inquiries and why his false claims about the inquiries are (IMO) so fundamental.

Tom – Steve is right about that. That said, “reckless disregard” is actually part of the definition of “actual malice”…that is, you can get actual malice either by (1) disbelieving what you write, or (2) having reckless disregard for whether it’s true.

“Reckless disregard” basically means, “You didn’t care whether it was true or not; you seriously doubted it was true.” It’s not about whether the defendant’s beliefs are well founded, but only about whether the defendant believed them. So the question on reckless disregard is not whether the judge thinks Steyn is wrong…he probably does, if he concerns himself with the issue at all…it’s whether there’s evidence that Steyn himself doesn’t believe what he said. Or at least that’s how it’s supposed to work.

Steve: Steyn has a surprisingly long history on the Hockey Stick, including very strong statements when Climategate broke. These show that Steyn’s position was longstanding. I have some notes on some of these earlier statements that I’ll try to post up. There is not a shred of evidence that Steyn had “serious doubts” about the validity of his statements. As discussed before, Mann’s entire case for “actual malice” requires that Steyn adhere to government inquiries (which did not, in any event, say what Mann claims.)

I think you would have an easier time demonstrating reckless disregard by Michael Mann. One of the few public figures who has managed to win a case is Westmoreland against 60 Minutes, when he demonstrated that they edited the video to put in different questions for his answers.

While interesting, some of the discussion here has tended to gloss over the fact that the first judge that heard this matter was, as Steyn has said, pretty close to being totally incompetent, going so far as to mix up the defendants’ various statements and ascribing to Steyn and NR statements that they did not make. She was removed from the case, presumably because she had made such a botch of it. I have not read the replacement judge’s opinion. That may be what Bob, Joe and Kenneth are parsing. If so, my post may be misguided.

PhilH – Judge Combs Greene was not removed from the case because “she had made such a botch of it.” Jonathan Adler also disagrees with the judge (although less colorfully than Steyn), but in the update, he writes that the case was assigned to Judge Weisberg due to Judge Combs Greene’s retirement in 2013.

In a previous post, you equated Zimmerman’s libel case to Mann’s libel case. In the Zimmerman case, the twisting of information led to an increased risk to Zimmerman’s life. Yet, your personal bias against Zimmerman (you called him a vigilante), allowed you to use the legal crud from the court to dismiss the libel case, despite that it incensed many against Zimmerman. I commented on this issue with libel law, that it would be a shame if large organizations could increase the chance of death of a citizen vs. free speech, and you claimed I had violated your rules, which I had not, and deleted the comment.

I have spent the time to understand the mathematics behind some of your deeper posts, particularly Gerghis et. al, to understand what you were saying, and understood the math but could not assess the magnitude. That takes steeping. Your comment that during glacial advances, trees can be damaged, and therefore damaged trees should not be included is insightful, IMO. Yet, I’m now wondering whether you have any sense of proportion. And whether you use minutia to try to degrade your opponents, for whatever reason they are your opponents, and must be pulled down.

I have no way of knowing whether a flaw in methodology can lead to real or significant errors in their results, and I’m now realizing I can’t recall an instance in which you have posted the error in calculations. Only saying they were in error.

Regarding Mann, who has claimed Dr. Judith Curry is “Anti Science,” I don’t think he has a leg to stand on. But in terms of what you are doing, I no longer find it interesting, because I can no longer trust your sense of proportion, and think your thought may well be driven by emotional reasons, as opposed to truth seeking.
Steve: read my vigilante comment very carefully.

I should also add that the very fact that Mann’s curve disagreed with those showing the LIA and MWP is, in itself, proof that the interpretation of the data used was controversial and part of the “robust” nature of scientific debate.

[…] party has any connection with D.C.) and of delaying trial. He also ups the ante by accusing Mann of fraudulent claims, including that Mann was a Nobel Laureate, and that he was “exonerated” by a British […]

[…] are Constitutionally protected free speech. The controversy surrounding the suit has resulted in a number of groups, including the Electronic Frontier Foundation and the ACLU, jumping to the defense of the […]